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A Primer on Copyright

Boston University Associate General Counsel Dennis C. Hart recently spoke to the Educational Technology Collective about copyright. Hart received his law degree from Harvard Law School, and went on to work in both corporate counsel and private practice before joining BU in 1987. At the university he handles copyright and publishing, trademark, sponsored research, intellectual property, information technology, and a number of other matters.

This article is based on his presentation to the Collective, and is offered as a source of background information for those looking to familiarize themselves with the basic rules of copyright.

How to use this blog post

We cannot cover all of the complexities and subtleties of copyright and intellectual property in a blog post, nor should we try to. As a basic rule one should err on the side of caution by asking permission to use someone else’s material when the rules are unclear, or seeking out advice from reliable sources like the BU librarians. If you are a member of Boston University and have a specific question regarding intellectual property and copyright, you can request information from the Office of General Counsel.

Intellectual Property & Copyright

The definition of “intellectual property” is: “Creative output subject to legal protection.” The concept of intellectual property has been developing for a long time, and the rules regarding copyright can be confusing and complex. In order to protect ourselves from complications, it is best to have a basic understanding of copyright rules, or at least know where to go to learn more about it. If copyright is infringed, one can be subject to an injunction, destruction of the infringing articles, fines, and a number of other consequences.

When in doubt, access the public domain:

The following sources are available for free use, since they fall under the category of public domain:

US government works

Pre-1923 works

Some 1923 – 1963 works (depending on the circumstances)

The basic term of copyright is 70 years after the content’s author passes away, unless the content was created for your employer, or, in some circumstances, created under contract for another entity. In such cases, it is called a “work for hire,” and the term of copyright is 95 years after the 1st year of publication, or 120 years from year of creation (whichever is shorter).

What is fair use?

“Fair use” is a defense against copyright infringement, claiming that the use of the content is for a “transformative” purpose favored under the copyright law. This could include criticism, comment, news reporting, teaching, scholarship and research (17 U.S.C. § 107). Content is more likely (though not guaranteed) to fall under the category of fair use if it is: non-fiction; if there is no mechanism for licensing available; if there is no economic impact on the author/owner; if the content will be used for nonprofit, educational purposes. The proportion and duration of the use matters. Small excerpts of a larger work that are copied or disseminated for a spontaneous, transformative purpose (e.g., to make a point in the classroom) are likely to be deemed a fair use; a faculty member’s repeated incorporation of the same long textbook chapter in the syllabus year after year is unlikely to be a fair use. So educators should be cautious in employing fair use. The idea that copyright does not apply if it is for an educational purpose is definitely not the rule.

What is permitted use?

The definition of “permitted use” is true to its name: it is content that you gain permission from the content’s owner/agent/author to use. Dennis advises participants to be extremely specific about the content to be used, the context and audience it will be used for, whether or not the content owner requires a fee for the use, and to guarantee all of these specifications in a written confirmation of some sort.